Before I begin, please note that the contents of this post reflect only my own views, not those of my co-editors, my school, my colleagues (all of whom are fabulous teachers, scholars, mentors, administrators, and people), or our wonderful students and alums (who are smart, hard working, and will make or already are great lawyers) . . .
I think there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work. The students have to start with order and see how it is constructed from chaos and how to explain that before they can learn to do the same thing, which really, is what lawyers do for their clients.
-- Prof. Marcia McCormick, commenting on the value of legal scholarship in the face of criticisms that question whether the law students who subsidize it are getting their money's worth --
So as I sit here on a Saturday night, I am having the great pleasure of putting the finishing touches on my last books as a law review editor. I have procrastinated about this, at least somewhat, because I am pretty convinced that the law review is a pretty meaningless activity. Sure, being the EIC was an interesting experience, I got to do some editing and other work that I would not have done -- and it's undeniable that the long-term career benefits of having the EIC next to my name are large.BUT -- here is the stark reality. We had 12 open slots last year for articles. Through Expresso, I think we ended up having something like 1800 submissions. 1800!!!!! Of those 1800, I would say 1500 were absolutely awful. Terrible. The student comments written by second-year students were better -- usually far better. As I would work with the articles editor on picking pieces, I would become more and more depressed about the meaning of legal scholarship and what I was actually doing.I further realized that the whole law review enterprise was another cog in the wheel for raising the costs of law school. One aspect of your criticism of legal scholarship that has not been made yet is the undeniable connection between "scholarship" and USNWR rankings. As you surely know, deans try to control every and any input that they can in the USNWR process. They know that the academic survey counts.
Never mind the fact that the academic surveys are largely stagnant -- I think many deans believe that if they hire professors who write stuff that gets published, it could possibly raise their academic reputation score and thus increase their USNWR ranking. So, you hire senior faculty, who write lousy articles, and you pay them lots of money -- or you hire junior faculty with the promise of writing lousy articles and you promise them light teaching loads. Either option contributes to increased costs for students -- but very few care about that because the students are largely insensitive to costs (at least up until now).
-- Email from the EIC of the flagship law review of a moderately well-ranked law school --I should be fair and say that not EVERY submission was bad -- I would say about 300 were good. But every night last summer and fall when I would read the very many bad articles, I kept thinking -- is having a faculty person write this REALLY the best use of resources? Maybe instead of encouraging people to write all of these articles, we could encourage people to, well, teach, take on higher teaching loads, which means we would need fewer faculty overall, and thus decrease the cost of faculty, and perhaps pass on some of the savings to students in the form of lower tuition?
The observation that most legal scholarship is bad is neither original nor in itself necessarily too significant. (Cf. Sturgeon's Law). The problem -- again -- is cost. Back when I was doing the basic research for David Segal's better New York Times critiques of legal education, I calculated that the total amount of legal scholarship being published annually had increased about sixfold since the early 1970s, that "scholarly output" had increased by about three and half times per capita, and that at present the average law student pays about $12,000 over the course of his or her legal education to subsidize the production of law review articles (a sum that has roughly tripled in constant dollars over the past 25 years).
When people ask how to go about bringing the cost of law school back toward having some rational relationship with the net present value of a law degree, one of the first questions that needs to be answered is: how much of the legal scholarship students pay for is worth what they pay for it? I'm not suggesting this is an easy question to answer. I'm suggesting the question needs to be asked. At present, my sense is that, at most law schools, it is simply taken for granted that the production of ever-greater numbers of law review articles is a primary institutional goal, and this is reflected by the faculty hiring process in particular, and the allocation of scarce resources in general.